A. In a patent application for an invention related to a micro-organism, the same owner has been deposited with the international depository authority under Article 7 of the "Bapest Treaty on the International Recognition of the Deposit of Micro-Organisms for Patent Procedure" and Article 1 (2) of the former Enforcement Decree of the Patent Act (Presidential Decree No. 10428, Jul. 30, 1981)

(b) Where a patent application is filed with respect to an invention related to a micro-organism, and it is unnecessary to deposit the germs itself of the form and quality converted body used therein;

A. In a patent application for an invention related to a micro-organism, the main text of Article 1(2) of the former Enforcement Decree of the Patent Act (Presidential Decree No. 10428, Jul. 30, 1981) is limited to the depository institution of a micro-organism designated by the Commissioner of the Korean Intellectual Property Office. The main text of Article 2(1) of the amended Enforcement Decree of the Patent Act (Presidential Decree No. 12199, Jul. 1, 1987) added an international depository institution provided for in Article 7 of the "Dada Papest Treaty on the International Recognition of the Deposit of Micro-Organisms for Patent Procedure" other than the depository institution designated by the Commissioner of the Korean Intellectual Property Office. However, in accordance with the proviso of Article 1(1) of the Addenda of the Enforcement Decree of the Patent Act, the amended provisions on the above Soda Papest Treaty shall enter into force for the Republic of Korea (the above treaty entered into force from March 3, 190).

(b) In a patent application for an invention related to a micro-organism, if the starting micro-organism required in the process of producing the converted body into the form and quality used can be equal to that of the vacant public, or can be easily obtained by the party concerned, and if the process of manufacturing the converted body into the form and quality is specified in the specification so that the party concerned can easily reproduce it, it is sufficient to prove that there is no need to deposit the converted body into the form and quality itself, and that it can be deposited with the starting micro-organism required in the process of producing it, or obtained it easily.

A.B. Article 8(3) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), Article 1(2) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199 of Jul. 1, 1987), Article 2(1) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199 of Jul. 1, 1987), Article 2(1) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 13078 of Aug. 28, 1990), Article 2(1) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 13078 of Jul. 1, 1987), Article 7(2) of the Dapest Treaty on International Recognition of Micro-Organism Deposit in Patent Procedure

A.B. Supreme Court Decision 90Hu1505 delivered on August 27, 1991 (Dong-dong), 90Hu1529 delivered on August 27, 1991 (Dong-dong). Supreme Court Decision 87Hu45 delivered on October 13, 1987 (Gong1987, 1720) 88Hu42 delivered on August 8, 1989 (Gong1989, 1362)

Denmark Corplate (Attorney Suh-ro et al., Counsel for the defendant-appellant-appellee)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 89Na516 dated July 24, 1990

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal by the attorney of the applicant.

1. 원심결은 그 이유에서 본원발명은 인간의 지라조직(Human spleen tissue) 또는 임파세포(Lymphocyte)에 mitogen을 처리한 후 이때 생긴 m-RNA를 추출분리하여 이로부터 감마인터페론을 암호화하는 c-DNA를 형성한 후, 이 c-DNA를 플라스미드 PLeIF A 25에 삽입시켜 Pr-CYC 5(표현 플라스미드)를 생성하고, 이를 대장균 W 3110균주 [F-, λ-, 프로트로픽(ATCC 27325)] 에 재조합시켜 형질변이된 숙주-벡터 결합체 W비110/PR-CYC 5를 생성시켜 감마 인터페론을 제조하는 방법인바, 본원발명에서 이용하는 W비110/PR-CYC 5가 국내기관에기탁되어 있지 않고 위 균주를 용이하게 입수할 수 있다고 인정할 수 있는 자료나 용이 입수처 등이 명세서에 기재되어 있지 아니하므로 위 균주는 그 발명의 분야에서 통상의 기술을 가진 자가 용이하게 입수할 수 있는 균주로 인정되지 아니하고, 따라서 출원인은 본원발명의 출원에 있어 특허청장이 지정하는 기탁기관에 위 W비110/PR-CYC 5균주를 기탁하였어야 함에도 불구하고 이를 기탁하지 아니하였으므로 구 특허법시행령 제1조 제2항 에 위배되어 거절사정되어야 한다고 판단하고 있다.

2. The main text of Article 1(2) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 10428, 1981; hereinafter referred to as the "Enforcement Decree of the Patent Act") which was in force at the time of the patent application of this case is limited to the organizations designated by the Commissioner of the Korean Intellectual Property Office by stipulating that any person who intends to file a patent application for an invention using a micro-organism should deposit such micro-organism with the organizations designated by the Commissioner of the Korean Intellectual Property Office and attach documents certifying the deposit thereof to the application. The main text of Article 2(1) of the amended Enforcement Decree of the Patent Act (Presidential Decree No. 12199, Jul. 1, 1987; Presidential Decree No. 12199), other than the organizations designated by the Commissioner of the Korean Intellectual Property Office, was added to the international depository for the international approval of the deposit of micro-organism under the patent procedure.

3. However, in light of the record, WABR-CYC 5 of the original decision: (a) it is clear that: (b) in the process of manufacturing the Mazine Roster loan, WA c-DN is recombined into the Mazine Mazine and converted into the form and quality by inserting Mazine 3110 with the Mazine 3110; and (c) even if the WA-CYC 5 itself is not deposited, it can be easily obtained by a person with an ordinary skill in the field of the invention, i.e., the Mazine 110/PR-CYCY5, and if it is stated in the specification that it can be easily reproduced by the Mazine 110/PR-CY5, the deposit of the Mazine 10/CY-15 in the process of producing the Mazine Mazine Mazine ; and (d) it is not necessary to prove that it can be made within the specifications.

However, the original decision only determined whether to deposit the chip 110/PR-CYCY 5 with the chip owner itself and whether it can be easily entered, but it does not completely examine and determine whether the party can easily manufacture it with the microbes required in the production process of the above form and quality converted body by the specification, and whether the new microbes are publicly known or can be easily obtained by the party. Therefore, there is an error of incomplete deliberation in this regard.

4. Therefore, we reverse and remand the original adjudication. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)